It's All Up To The Supreme Court Now

Forgive me if I'm not convinced that they'll uphold the Constitution against Donald Trump's lawless gulag agreement.

The term “gulag” came about from the acronym for Glavnoye Upravleniye LAGerey, the Main Camp Administration of the NKVD (Soviet secret police predecessor to the KGB). It was where millions of Soviets died in labor camps, disappeared from their homes, jobs and families, almost never to see the light of day again. The most notorious of these was Vorkuta, a located north of the Arctic Circle. Coal was discovered there in 1930, and within two years, Josef Stalin had placed a massive labor camp there for political prisoners, known as Vorkutlag. For the next three decades, tens of thousands of prisoners would be sent there to dig coal in the dark, cold wastes of Vorkuta. The NKVD did not keep records of most deaths, but the estimate is that roughly ten percent of prisoners died in the camps, and extrapolated from that, an estimated 7,300 out of the 73,000 prisoners at Vorkuta would’ve died in that span.

Why does this matter today? Because in a rapidly moving case, Kristi Noem, Secretary of Homeland Security v. Kilmar Armando Abrego Garcia, has moved to the Supreme Court, after conservative judges at the district and circuit level denied the government’s motion to dismiss. Mr. Garcia is the father of the autistic child who was legally living in the United States when ICE, solely on the basis of having a tattoo (an autism awareness one, mind you) and being Hispanic, snatched him and threw him on a plane to El Salvador’s CECOT prison. Mr. Garcia is not Salvadoran. He was not guilty of any crime. The government admitted the error back when an honest Justice Department attorney was on the case, but they’ve suspended that guy and replaced him with a sycophant who now argues that Garcia is “an MS-13 member” and “has no right to be in this country.”

All of that is bad enough, but as I warned previously, as you can read by clicking below, when ICE gets involved, proving citizenship can quickly become difficult.

The best way that one can prove citizenship, of course, is to have papers on you at all times, but passports are not designed for that sort of abuse. The second-best way is in court. What the Trump regime is doing is to say, “what courts?” and just ship those it’s arresting to El Salvador as an object lesson. 60 Minutes ran a massive feature last night demonstrating that 75% of the people that ICE sent to El Salvador had committed no crimes. A photographer, Philip Holsinger, captured an image that haunts me. It’s from after the arrival of these deportees, where they’ve forcibly been shaved bald and put into their prison garb.

Deportees stacked together with no room to move in El Salvador prior to transfer to CECOT, by Philip Holsinger.

Holsinger chose black & white, likely to accentuate the historical parallels. While the Soviets and the Chinese, for example, also maintained crowded work camps or concentration camps, the Nazis are the ones whose crimes were most documented photographically. Here, we see echoes of their behavior—people stripped of their clothes, their heads shaved, packed together worse than cattle, being thrown into a prison without trial. It is designed to be brutal. It is designed to break these men. It operates under a “state of emergency” that keeps being reapproved by the legislature for over thirty consecutive months. They did this because of the massive gang wars between MS-13 and a rival gang.

So why are we paying them to take prisoners? Why have we signed a deal where we can send anyone, of any nationality (Americans not excluded), to this sadistic place? Why are we sending people without any due process, or court hearing, or conviction? And why, of all things, is the government arguing that their decision to do so cannot be reviewed, rescinded, or changed by anyone in any way?

The invocation of the 1798 Alien Enemies Act, which was part of the Intolerable Laws passed by John Adams as president with the agreement of the Federalist-dominated Congress, was a warning sign, because it invokes broad emergency powers. Trump, as you likely remember, spent the entire campaign arguing that we were being invaded, that we were in an emergency. He reached back over 225 years for his precedent, itself concerning, but then doubled down by deporting people not to their nation of origin, but a torture prison in another country that we are paying to accept deportees. We are paying them.

And yet, the government makes this argument.

“To return an enemy alien [the Alien Enemies Act verbiage] we’d have to negotiate with a foreign nation, and the guy you want returned is a member of MS-13, a terrorist organization (that we just declared to be terrorists right before this action), which means the judge is unlawfully practicing diplomacy that only the executive is allowed to perform” is the paraphrase of their full filing. One might remember that the original plan was to send deportees to Guanatanamo Bay. But, suddenly, we changed course, signed a deal with El Salvador’s horrible, trollish dictator Bukele, and send deportees there. What changed?

It’s quite likely the change was that someone at DOJ pointed out that anyone held at Guantanamo Bay, through the 2004 Rasul v. Bush case where the Supreme Court ruled that anyone held there was eligible for habeas corpus to challenge their detention. Therefore, the entire point of this deal is to try and create an end run around the Constitution and the courts. By arguing that these deportees are not in American territory, they cannot challenge their detention, and that we cannot compel El Salvador to release them, even though we are paying for their detention in the first place, and that they would not be there without our direct involvement sending them there.

Now, one does not need to be a lawyer to see the flaw in the argument. They can arrest anyone and send anyone to El Salvador, and claim by virtue of their current location, courts cannot compel their release. There is no carve-out to distinguish between legal immigrants, illegal immigrants, permanent residents, or citizens. The argument is simply that we cannot compel El Salvador to release anyone in the CECOT prison, even if we sent them there in violation of our own laws.

This alone should have been enough, in a functional society, to impeach and remove everyone involved with facilitating this policy so they could never hold office again. The fifth amendment to the Constitution is clear:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Nowhere in the text does it state “citizen,” “resident,” or “natural-born citizen.” It says person. The Constitution applies to all. The law of the land is the law for everyone, not just whom the government picks and chooses. Due process is vital to everyone’s freedom, not just “others,” because if the government can decide anyone is a terrorist, or that anyone is no longer legally residing here, or who is/isn’t a citizen of the country without judicial review, then nobody is safe. Nobody is safe from being snatched up by mask-wearing, black-clad ICE thugs, chained, forced onto an airplane, and sent to another country to rot in a prison without a trial or even an evidentiary hearing.

What scares me is that, nominally, this should be a slam dunk unanimous ruling against the government, who is shattering the Constitution. This is also the same court, though, that ruled that criminal charges couldn’t be brought for Presidential actions “if taken in the guise of official actions.” These crimes are being performed as official acts. Either the Supreme Court rules against this appeal that so broadly aims to remove the third branch as holding any review power over the executive, or they ratify this and seal the death of the Constitution they are sworn to uphold. As of 3:50 pm EDT, Chief Justice John Roberts has issued a stay of the midnight deadline pending further arguments from counsel. This doesn’t change much, but it does increase the stakes of the ruling dramatically.